Monday, 1 December 2014

The Cameron express: could there be a ‘fast-track’ Treaty amendment on the free movement of workers?

Steve Peers

For EU law geeks, the Treaty
amendment process is the World Cup, the general election and the second coming
of the Millennium Falcon rolled into
one. Following the Treaty of Lisbon, it seemed unlikely that there would be
another significant Treaty amendment for years. But following David Cameron’s
demand to renegotiate EU free movement rules (which was echoed to a lesser
extent by the UK Labour party), it has become rather more likely.

So we must move on to the next question:
what type of Treaty amendment would
it be? Before the Treaty of Lisbon,
there was only one form of Treaty amendment set out in Article 48 of the Treaty
on European Union (TEU). However, it was also possible to amend the Treaty by
means of accession treaties, and there were sundry forms of minor Treaty
amendment (such as amendments to the EU Court’s Statute) scattered around the
rest of the Treaties.

Since the Treaty of Lisbon came
into force five years ago today, this situation is considerably more
complicated. The previous Treaty amendment process has been revised, and there
are two variations of it; it’s now called the ‘ordinary revision procedure’.
There are two entirely new ‘simplified revision procedures’. Furthermore, there
are additional possibilities for minor Treaty amendment scattered around the
rest of the Treaties, and it’s still possible to amend the Treaties via means
of an accession treaty.

These distinctions are important because
if Cameron’s plans could be put into place by using a simplified revision
procedure, the process would be speeded up at EU level – although not
necessarily at national level.

The changes were so fascinating
that, in an explosion of EU law geekiness, I took over 100 pages to analyse
them in an article for the Yearbook of European Law. I won’t subject you to all of my analysis there, but it’s
the basis for my following comments on which Treaty amendment process would
apply to Cameron’s reforms.

Legal framework

There’s no accession to the EU planned
for the next five years. So even if an accession treaty could address David
Cameron’s renegotiation demands (and I don’t think it could), that prospect is
irrelevant, since they couldn’t be addressed by this route before the deadline he
has set for a referendum on the UK’s membership of the EU (end of 2017). The
minor Treaty amendment processes aren’t relevant to any of his renegotiation demands
either.

That leaves us with the ordinary
revision procedure and the two simplified revision procedures set out in
Article 48 TEU. These have been discussed in posts on other blogs over the weekend, in particular the 'Boiling the Frog' blog.
I’ll respond
below to some of the points made there.

The ordinary revision procedure
requires a ‘Convention’ to be called, consisting of representatives of national
parliaments, Member State governments, the European Parliament and the
Commission. The Convention meets for a while (the details have to be worked out
on a case-by-case basis) and recommends Treaty amendments. An Inter-Governmental
Conference (IGC) of Member State representatives then convenes to consider the
proposed amendments. If the IGC reaches agreement by the ‘common accord’ (ie
the positive support) of all Member States, then the resulting Treaty amendment
must be ‘ratified by all Member States, in accordance with their respective constitutional
requirements’.

As a variation on this procedure,
it’s possible to skip the Convention stage if a simple majority (15/28) Member
State governments think that it’s unnecessary, in light of the limited extent
of the proposed amendments. But an (inevitably short) IGC and Treaty
ratification process is still necessary. If governments want to skip the Convention
stage, they must convince the European Parliament to consent to it.

What about the two simplified
procedures? The first simplified procedure, set out in Article 48(6) TEU, is
the only one that might be relevant to Cameron’s proposed amendments. It
provides that a Decision to amend the treaties can be adopted by the ‘European
Council’, ie the EU body consisting of Heads of State and Government (Cameron,
Merkel, et al), acting unanimously. This Decision then has to be ‘approved by
all Member States, in accordance with their respective constitutional requirements’.
This procedure applies to amendments of ‘all of part of Part Three’ of the
Treaty on the Functioning of the European Union (TFEU), the second of the two
main Treaties establishing the EU (more below on what’s in Part Three of the TFEU).
This process ‘shall not increase the competences conferred on’ the EU.

The second simplified procedure,
set out in Article 48(7), provides for a shift away from unanimous voting of
Member States to qualified majority voting, or for changes in the type of
legislative procedure, as regards most (but not all) of the two main EU
Treaties. Again, the decision concerned would be adopted by the European Council,
acting unanimously. But instead of ratification or approval by national
parliaments, the Decision could be adopted if no national parliament objected
within six months.

Obviously the second procedure
couldn’t apply to Cameron’s proposed amendments, since increasing qualified
majority voting in the EU is the last thing on his mind. This means that the curtailed
role for national parliaments in the second procedure would not apply to the amendments which
Cameron is seeking. The Boiling the Frog blog post gets this point
wrong.

Since the entry into force of the
Treaty of Lisbon, Article 48 has been used four times for Treaty amendments.
(There’s also been an accession treaty and some minor Treaty amendments). The
ordinary revision procedure was used on three occasions, as regards: a Protocol
increasing the number of Members of the European Parliament temporarily; a Protocol
on the concerns of the Irish people about the Treaty of Lisbon; and a Protocol
limiting the effect of the EU Charter of Fundamental Rights in the Czech Republic.
The first of these Protocols entered
into force in 2011; the second Protocol is still being ratified;
and the ratification of the third Protocol stopped after a new Czech government
withdrew its request, because it no longer wanted to limit the effect of the Charter.

The other Treaty amendment was
based on Article 48(6). It consisted of a Decision adding a single
paragraph to the TFEU in order to provide for Member States to adopt a treaty
establishing a European Stabilisation Mechanism (ESM), ie a bailout fund for
Eurozone Member States. This Decision entered into force in 2013.

The key questions about the
possible use of the simplified Treaty amendment procedure set out in Article
48(6) for Cameron’s suggested changes are twofold. Firstly, how much easier is
it to use than the usual Treaty amendment process? And secondly, when exactly can
it be used? I’ll address these procedural and substantive questions in turn.

Procedural simplification

The simplified procedure doesn’t
require a Convention to discuss the Treaty amendments. Furthermore, it allows a
Convention to be skipped without the European Parliament’s consent; the Parliament
only gets to be consulted on the Treaty amendment. There’s no IGC either,
although inevitably there is some discussion among Member States, within the
framework of the European Council, about the text which the European Council
should adopt.

What about transparency? The last
few IGCs have been fairly transparent, but when the European Council drew up an
Article 48(6) amendment in 2010, no drafts of the Decision were published, and
the European Council staff simply ignored my requests for access to the
documents. Let’s hope this obnoxious attitude wouldn’t be applied to future
cases. For a starting point, it was illegal to ignore my requests for access,
since the EU’s access to documents rules apply to documents of the European
Council. Furthermore, while those rules allow
for access to be refused in the interest of the institution’s decision-making
efficiency, that interest can be overridden in the greater public interest.
Obviously the public interest in scrutinising and debating planned Treaty
amendments should take precedence.

While it's been suggested
that a European Council Decision can be quietly adopted and presented as a fait accompli, that isn’t
legally accurate or politically realistic. On the legal side, Article 48(6)
expressly makes clear that the Decision will have to be ratified at national
level. For the UK, if Cameron is doing the negotiating, that would also
necessarily mean that the Conservative party either had obtained a majority at
the next election or had done a deal with one or more parties to allow it to
govern. In the scenario, an Act of Parliament providing for a ‘Brexit’
referendum would surely be on the statute books by the time the renegotiation
of membership takes place.

In the event of a Labour (or
Labour-dominated) government, there would be no commitment to a Brexit referendum
(unless that party changes its current policy). So the Treaty amendment in
question would be subject to the European Union Act 2011, which requires an Act of Parliament for its ratification (see
s. 3 of that Act; such a Treaty amendment is not among the list of changes
which would require a referendum, according to s. 4 of that Act).

On the political side, if David Cameron
secured a Treaty amendment and said he would not hold a Brexit referendum after
all, he would not remain as Conservative party leader for more than 24 hours. Anyway, since the referendum Act would
presumably be on the books already, it’s hard to imagine a scenario in which a
Conservative-dominated House of Commons would vote to rescind it. Equally, the
Labour party says that it supports the European
Union Act 2011, and if it has enough votes in the House of Commons to form
a government, it should probably have enough votes to pass an Act of Parliament
approving the Treaty amendment.

It’s often thought that all
Treaty amendments require referendums in some other Member States, at least in
Ireland. But that isn’t the case: the post-Lisbon Treaty amendments mentioned
above didn’t require one. The crucial issue, according to Irish constitutional
case law (see the Crotty
case), is whether there is a fundamental change in the basis of Irish
participation in the EU. It might be argued that a cut back in the rights of
free movement of workers would constitute such a change; but the favourable
immigration status of Irish people in the UK derives originally from UK
domestic law, not the EU Treaties. On the other hand, an amendment to the
Treaties would leave more flexibility for the UK to change that domestic law if
it wished to.

Substantive issues

As a reminder, Article 48(6) can
only be used if a Treaty amendment would revise Part Three of the TFEU, and
would not increase the EU’s competences. Part Three of the TFEU is the biggest
part of that Treaty, and sets out the main rules on the internal market, along
with other EU internal policies on issues such as Justice and Home Affairs and the
environment. Obviously, this means that the Treaty amendment could not be used
to amend the separate TEU Treaty, or to amend the other six Parts of the TFEU.

What do these two legal
constraints mean exactly? An interesting feature of Article 48(6) is that the
CJEU has jurisdiction to rule on whether the European Council Decisions are
valid or not. That’s because these particular Treaty amendments take the form
of decisions of an EU institution,
whereas the ordinary revision procedure results in acts of the Member States. The CJEU can rule on the validity of the
former, but not the latter.

Challenges to the European
Council Decision could come from the European Parliament (which might want to argue
that the ordinary revision procedure should have been used), or via the
national courts, which would send a question on validity to the CJEU. The
latter process was indeed invoked when the Article 48(6) process was used
before. In the case of Pringle,
the CJEU was asked (among other things) whether the Treaty amendment relating
to the ESM treaty was valid.

According to the Court, it was;
and its judgment gives us some insight into the limits of Article 48(6). First
of all, the Court assessed whether the Treaty amendment only amended Part Three
TFEU. Formally speaking, that was an easy question to answer, since the
amendment took the form of a new paragraph added to Article 136 TFEU concerning
economic and monetary policy, and Article 136 is within Part Three. But the
CJEU went further than that, and examined whether there was an indirect amendment to other provisions
of the Treaties. This is surely the right approach, because otherwise it would
be possible for an amendment placed in Part Three of the TFEU to limit the
scope of an EU competence described in Part One of the TFEU, or to alter the
Treaty amendment procedure as set out in the TEU (a separate Treaty).

The importance of this point is
that it could crop up again in respect of Cameron’s planned Treaty amendment.
It could be argued, for instance, that a limit on EU workers’ rights might take
the form only of an amendment to Article 45 TFEU (which sets out the basic rules
on free movement of workers), it might impact upon the rules on EU citizenship
and non-discrimination, which are set out in Part Two of the TFEU. Arguably, it
might also impact upon the objectives of the EU, which include the free
movement of workers, as set out in Article 3 TEU. Someone might also argue that
it violates the EU Charter of Rights, which is separate from the Treaties but
has the same legal value.

Furthermore, it’s clear that
Cameron still wants to make changes to EU law besides the free movement rules. He confirmed this in his speech,
when he said that he stood by every word of his Bloomberg speech of January
2013. The other changes he wants, such as a weakening of the ‘ever closer union’
rule and some changes relating to EU regulation, might not require a Treaty
amendment, as I suggested earlier this year. But if Cameron did seek
one, that would be problematic. The ‘ever closer union’ rule appears in the
preamble, and Article 48(6) TEU cannot be used to amend the preamble either
directly or indirectly. Arguably, any curtailment of the ‘ever closer union’
rule affects the entirety of the Treaties anyway. It would be easier to use
Article 48(6)TEU as regards regulation issues, since the rules on the internal
market and employment policy both appear in Part Three TFEU. But again it might
be argued that such amendments have an indirect impact upon the objectives set
out in Article 3 TEU, or the Charter.

What if the amendments took the
form of a Protocol? Arguably Article 48(6) cannot be used to add, amend or
repeal a Protocol, even if the content of that Protocol relates only to Part
Three TFEU. The reason for this interpretation is that Protocols are attached
to the entirety of both of the main EU Treaties, rather
than to any Part of the TFEU as such.

That still leaves the issue of increasing
EU competences. In Pringle, the CJEU
ruled that the relevant Treaty amendment was acceptable on this point, since it
simply confirmed the existence of competences that the Member Statesalready had.
Applying this to Cameron’s planned Treaty amendments, they could probably not
take the form of permitting the EU
institutions to pass legislation to curtail the free movement rules, since
that might be described as a new competence for the EU, given that the
institutions would be able to provide for more limits than they can at the
moment.

So the amendments would have to
take the form of a new power for the Member
States to curtail workers’ free movement rights. In principle this should
be acceptable legally, since the prohibition on increasing EU competences set out in Article 48(6) surely implies
that this process can be used to decrease
such competences. But remember, in Pringle,
the CJEU stressed that the Treaty amendment was acceptable because it confirmed
existing powers of Member States. The
amendments to the rules on the free movement of workers would be giving Member States
new powers. While this also seems to
fall within the scope of Article 48(6), the CJEU sometimes takes unusual
approaches to the interpretation of Treaty rules.

Conclusion

A simplified Treaty amendment for
Cameron’s free movement plans is possible, but only if they remain tightly
restricted to amending rules set out in Part Three TFEU, provide for powers for
Member States (rather than the EU institutions), and (probably) do not take the
form of a Protocol. In any event, there would likely be a legal challenge,
either from those who do not like the proposed changes or who think they do not
go far enough (or both). It’s possible that they would survive such a legal
challenge, but it might be politically unhelpful.

6 comments:

"He confirmed this in his speech, when he said that he stood by every word of his Bloomberg speech of January 2013."

That's true - he did say that - but everything else he said in and around the speech suggests that the other points have fallen away.

This was picked up by MPs Carswell and Reckless back in June - the final straw causing them to defect - along with Dan Hannan MEP who blogged about it at the time here: http://blogs.telegraph.co.uk/news/danielhannan/100276242/david-cameron-has-dropped-the-idea-of-a-new-deal-the-referendum-will-be-on-the-existing-membership-terms/

In short, those words may have been "just words" in an attempt to signal to listeners that he's being consistent over time.

Great analysis, really interesting.I have a question for you: lets suppose he succeeds with this amendment, or even the UK leaves the EU, what happens to people who is already there? they will lose their rights? or this goes forward for future migrants?Thanks!

The details of any Treaty amendment and/or other change in EU law would set out what would happen to EU citizens already in the UK, ie whether the new rules would apply to them or not. If the UK left the EU, there's a previous post on this blog from July, discussing what would happen to EU citizens living in the UK.

Hi, thank for the info!just a question for you:my actual situation is: I (non EEA) just got a week ago to the UK with my Italian wife who is working for an London based company. I -as her husband- has her same rights today. So I am looking for a job.Does Cameron's proposed change means -that it succeeds- I will need to leave the UK?Thanks!

It's very likely that the changes for non-EEA family members of EU citizens, if they come to pass, would not be applied to those who are already here when those new rules come into force. But we cannot be absolutely certain of that yet.